- (1.) A Division Bench of this Court in Criminal Appeal (D.B.) No. 586 of 2007, titled Anil Kumar @ Anil Kumar Singh versus State of Jharkhand, while dealing with an interlocutory application, moved under Section 389(1) Cr.P.C. (Central Code) for the second time for suspension of substantive sentence, the earlier one having been rejected once, wherein the Division Bench directed listing of the second application before the same Bench, which earlier heard the bail application or before the Bench in which one of the Hon'ble Judge is a member, the other Bench being not available because of transfer, retirement etc., the present five interlocutory applications in the aforesaid five different appeals, were placed before the Division Bench, headed by one of us (Brother Patel, J.). The Division Bench, observing that there is no such direction by the Hon'ble Supreme Court that once an application has been preferred for suspension of sentence and it is dismissed by one Division Bench, the same Division Bench should hear the subsequent application(s) preferred under Section 389 of the Code by the same accused, considered it to be a fit case for referring to the larger Bench. Hence this matter before Full Bench.
(2.) Order dated 13th of April, 2010 passed by the Division Bench in Criminal Appeal (D.B.) No. 586 of 2007 is quoted hereinbelow: - "The practice prevailing, both in the Patna High Court and of this court also, that fresh application for renewal of bail usually to be listed before the same Bench which earlier heard the bail petition and rejected the same. In our view, the practice should continue in order to maintain consistency in the orders. However, in exceptional circumstances, when the concerned Judge is not available because of transfer, retirement etc. the bail matters shall be placed before any other Bench. In the instant case, the prayer for bail of the applicant was earlier rejected by a Bench comprising Hon'ble Amareshwar Sahay, J and Hon'ble D.P. Singh, J. Since one of the Hon'ble Judge is available, let the application be placed before a Bench, in which, Hon'ble Amareshwar Sahay, J. is a member."
(3.) The Division Bench, making a reference, has not precisely put the controversy in the form of a question to be resolved by the Full Bench. However, the following two questions have arisen calling for the answer from this Bench: - (a) When a first application for bail preferred in a pending appeal under Section 389(1) of the Code has been considered by a Bench and faced rejection, should the successive and subsequent applications, except in exceptional circumstances, be also placed before the same Bench or be listed before the Bench that has been given the roster by the Chief Justice to deal with such matter? (b) If the first application for bail has been preferred under Section 389(1) of the Code and has been rejected by a Bench and if one of the members is available, whether the successive and subsequent application should be listed before a Bench of which he is a member or should it go before a Regular Bench as per roster assigned by the Chief Justice?;